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2007-02-15 Administrator The Issues CLD-69 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT No. 06-3194 ___________ GUY THOMAS FISHER, Appellant v. JONATHAN C. MINER, Warden, United States Penitentiary at Allenwood, Pennsylvania ______________________ On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. Civil No. 06-cv-0412) District Judge: Honorable Richard P. Conaboy _________________________ Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6 November 30, 2006 Before: RENDELL, SMITH and COWEN, Circuit Judges. (Filed February 15, 2007) _________________ OPINION OF THE COURT _________________ PER CURIAM Guy Fisher appeals from the order of the United States District Court for the Middle District of Pennsylvania denying his petition for relief pursuant to 28 U.S.C. § 1 We have jurisdiction under 28 U.S.C. § 1291. 2 Apparently, a conviction on a narcotic conspiracy charge pursuant to 21 U.S.C. § 846 was vacated. 2241. We will affirm the order of the District Court.1 In 1983 Fisher was convicted in the Southern District of New York of several offenses related to his narcotics distribution and racketeering activities. In particular, Fisher was convicted for engaging in a continuing criminal enterprise (CCE) in violation of 21 U.S.C. § 848. The United States Court of Appeals for the Second Circuit affirmed. Fisher has since filed two motions pursuant to 28 U.S.C. § 2255 (one in 1997, one in 2000), and sought authorization to file additional petitions three times, all unsuccessful with regard to his challenge to the CCE conviction.2 In the instant § 2241 petition, Fisher claims that his CCE conviction is unlawful because the District Court gave constitutionally deficient jury instructions when it failed to instruct the jury to unanimously agree upon the specific violations that constitute the “continuing series” of violations pursuant to Richardson v. United States, 526 U.S. 813, 815 (1999). He also contends that he is actually innocent of the CCE conviction and two RICO offenses because of the potential jury confusion resulting from the flawed instructions. Finally, Fisher claims that AEDPA is unconstitutional as applied to §§ 2255 and 2244, or alternatively, that § 2255 is inadequate or ineffective to test the legality of his confinement. The District Court dismissed his petition and denied a subsequent motion for reconsideration. Fisher now appeals. 3 A § 2255 motion is the presumptive means for a federal prisoner to challenge his sentence or conviction. See Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002); United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999). Such claims may not be raised in a § 2241 petition except in an “unusual circumstance” where a § 2255 motion would be “inadequate or ineffective.” 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 251 (3d Cir. 1997). This only occurs when “the petitioner demonstrates that some limitation of scope or procedure would prevent a § 2255 proceeding from affording him a full hearing and adjudication of his wrongful detention claim.” Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002). The fact that Fisher has previously filed a § 2255 motion that was denied on the merits, and thus faces the strict gatekeeping requirements that apply to second or successive § 2255 motions, does not serve to make § 2255 inadequate or ineffective. See Dorsainvil, 119 F.3d at 251. Fisher explicitly challenges his conviction and sentence and thus, is subject to the requirements to successfully bring a § 2241 petition set forth in Dorsainvil. Fisher argues that he meets the standard because in Richardson the Supreme Court held that a jury in a CCE case must unanimously agree, not only that the defendant committed some “continuing series of violations,” but also on the specific violations that comprise the alleged “continuing series.” Richardson, 526 U.S. at 815. The jury in Fisher’s pre- Richardson trial did not receive an instruction to that effect; thus, it is possible that the jury’s judgment on the CCE conviction may well not have been unanimous in the Fisher’s conviction for 3 narcotic conspiracy in violation of 21 U.S.C. § 846 was vacated as a result of the Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292 (1996). In Rutledge, the Court held that 21 U.S.C. § 846 (conspiracy to distribute controlled substances) is a lesser included offense of 21 U.S.C. § 848 (CCE), conviction for both offenses is improper, and accordingly, where the defendant was convicted on both charges based on the same underlying conduct, one of the convictions should be vacated. See Rutledge, 517 U.S. at 307. 4 Richardson sense. Further, because Fisher’s narcotic conspiracy conviction was vacated,3 Fisher contends that the 78 acts alleged in that count could not be used as the predicate offenses necessary for finding him guilty on the CCE charge or the RICO violations. He contends that, under these circumstances, it is not clear what three predicate offenses the jury could have used as the basis for the CCE conviction, and asserts that he thus is “actually innocent.” Fisher argues that he is in the same position as the petitioner in Dorsainvil, in that he is being detained for conduct that has subsequently been rendered non-criminal by an intervening Supreme Court decision. See 119 F.3d at 252; see also Triestman v. United States, 124 F.3d 361, 380 (2d Cir. 1997). We agree with the District Court that Fisher is not in the unusual situation contemplated by this Court in Dorsainvil. Fisher’s interpretation of Richardson is not supported by the case law. The courts of appeals that have considered the issue have concluded that a Richardson claim does not render § 2255 “inadequate or ineffective.” See Kramer v. Olson, 347 F.3d 214, 218 (7th Cir 2003) (a Richardson claim “is not the sort that will permit passage through the narrow opening of § 2255's savings clause”); Sawyer v. Holder, 326 F.3d 1363, 1366 (11th Cir. 2003) (because the conduct necessary Although this Court has not written on this precise issue in 4 a published opinion, we have concluded that § 2255 is only inadequate or ineffective where the petitioner was convicted for previously criminal conduct which an intervening change in the law has rendered non-criminal. See Okereke, 307 F.3d at 120. 5 to show a CCE offense is the same post-Richardson, “a Richardson claim is not the type of defect that opens the portal to a § 2241 proceeding”); Jeffers v. Chandler, 253 F.3d 827, 831 (5th Cir. 2001) (because Richardson “has no effect on whether the facts in [the] case would support [petitioner’s] conviction for a substantive offense,” petitioner cannot show he was convicted for conduct that did not constitute a crime).4 Notably, in Kramer, the Seventh Circuit faced a nearly identical situation to this, in which the petitioner – whose 21 U.S.C. § 846 conviction had been vacated pursuant to Rutledge – alleged actual innocence. The Court explained the difference between Kramer’s claim and those for which § 2255 was unavailable: those who may proceed under § 2241 can do so because of the possibility that their “convictions hinged on conduct Congress never intended to criminalize . . . [those] prisoners could admit everything charged in their indictment, but the conduct no longer amounted to a crime under the statutes.” Kramer, 347 F.3d at 218. In contrast, Kramer could not “admit committing the charged conduct and still escape punishment under the CCE statute.” Id. Fisher does not meet the Dorsainvil standard because the Richardson decision did not effectively decriminalize the conduct for which he was convicted. We also agree with the District Court’s determination that Fisher’s challenge to the constitutionality of AEDPA is without merit. Accordingly, the District Court properly denied Fisher’s 6 § 2241 petition. For the foregoing reasons, we will affirm the order of the District Court.

Guy Fisher appeals from the order of the United States District Court for the Middle District of Pennsylvania denyin...

2008-12-12 Administrator The Issues The Evolution of Prisons written by Guy is a history book, a sociology book, a prison book ad a educational book. It is all the above because it talks about the History of Slavery. Concentration Camps. And the Holocaust. It talks about the meaning of Sociology, showing the study of the way in which human life is socially organized, and it shows you the evolution of prisons throughout the world, as well as the atrocities and the sufferings both men and women have had to endure. And last but by far not the least, this book shows you the importance of an Education, explaining that Education is a structured form of socialization in which a culture's knowledge, skills and values are formally transmitted from one generation to the next. INTRODUCTION Inequalities and inhumane conditions are embedded in the very fabric of societies throughout the world. One of the many inhumane and unequal conditions known to men and women through- out the world has been imprisonment. Prisons such as the infamous: 1). DEVILS ISLAND, located in the most southerly of the lies Du Salut, in the Caribbean Sea, off French Guiana. It was the site of a penal colony (1852-1951) used mostly for political prisoners, such as Captain Alfred Dreyfus. Its name was synonymous with the systems horrors. 2). SIBERIA'S GULAG, a system of forced-labor prison camps in the USSR, from the Russian acronym of Chief Administration of Corrective labor Camps, a department of the KGB (Soviet Secret Police). Established in 1918, the vast penal network reached its peak under Joseph Vissarionovich Stalin, when deaths of political prisoners from starvation and other forms of maltreatment were estimated in the millions. The system which continues on a much-reduced scale today has been publicized in the writings of Solzheitsym. 3). CONCENTRATION CAMPS in Germany and Poland, such as Buchenwald and Dachau in Germany. Auschivizt, Treblinka and Majdamek in Poland. More than six million people mostly Jews and Poles were killed in gas chambers. Millions of others were also interned during World War II and a large proportion died of gross mistreatment, malnutrition and disease. The term concentration camp has also been applied to slave-labor camps in the USSR. 4). SLAVERY, and institution whereby one person owns another and can extract from that person labor or other services, found among both primitive and advanced peoples. In the 15th. and 16th Century, European exploration of the African coasts led to a lucrative, brutal slave trade carried out by the British, French, Dutch, Spanish, and Portuguese. African slaves, in demand in the Americas, were brought to Virginia in 1619. The slave trade developed a triangular pattern: Goods were transported from British ports to the West coast of Africa, where they were exchanged for slaves, who were taken to the New World and traded for agricultural stamples for economic and humanitarian reasons began in the 18th Century. Britain outlawed (1807) the slave trade and abolished (1833) slavery in the British Empire. In the United States slavery had disappeared in the North by the early 19th Century but had become integral to the South's plantation system; the Abolitionists regarded it as an unmitigated evil. 5). AMERICA'S ALCATRAZ, was an island in San Francisco Bay, West California. Discovered (1769) and fortified by the Spanish, it was (1859- 1933) the site of a United States Military Prison and then (1933-1963) to a federal maximum security prison called "The Rock". The above named Prison-Systems, Concentration-Camps and Slavery-Institutions, are just a few of the many levels of known places in which atrocities have been committed against men, women and children around the world, causing these men, these women and these children to be victims of "total institutions". Organizations that deliberately close themselves off from the outside world and lead a highly insular life that is formally organized and tightly controlled. The Evolution of Prisons has changed vastly since the 15th, 16th, 17th, 18th, 19th, 20th, and the 21st. Century. And yet for all the changes which have marked the atrocities of the past six centuries this 21st. Century can be the neo-birth of a society which so desperately needs a new beginning in the prison systems all around the world. Starting within these United States, this will serve as the example to the world!

Fact Sheet: President Bush Signs Second Chance Act of 2007 White House News President Bush Signs H.R. 1593, the Sec...

2012-01-26 Administrator The Issues Number of Older Inmates Grows, Stressing Prisons By TIMOTHY WILLIAMS, Published: January 26, 2012 ~ New York Times~ The number of Americans in prison older than 55 is growing at a faster rate than the group’s share of the population at large, and many prisons are unprepared to provide them with health care, which can cost as much as nine times more than for younger inmates, Human Rights Watch said in a report released Friday. Related Justices, 5-4, Tell California to Cut Prisoner Population (May 24, 2011) Prison Ruling Raises Stakes in California Fiscal Crisis (May 24, 2011) The complications in handling the swelling number of aging prisoners range from making allowances for those with Alzheimer’s or dementia and finding sufficient ground-floor cells for inmates in wheelchairs to ensuring that older prisoners are not exploited or robbed by younger inmates. “Age should not be a get-out-of-jail-free card, but when prisoners are so old and infirm that they are not a threat to public safety, they should be released under supervision,” said Jamie Fellner, the author of the study. “Failing that, legislatures are going to have to pony up a lot more money to pay for proper care for them behind bars.” The report found that the number of imprisoned men and women 65 years and older grew by more than 90 times the rate of the total prison population from 2007 to 2010. While the number of those older inmates increased by 63 percent, the number of all inmates rose by just 0.7 percent. State or federal prisons now hold about 26,200 people 65 years and older, and about 124,000 inmates older than 55, the report said. The number of incarcerated people who are older than 55 has grown at a rate six times that of the rest of the prison population. While most elderly inmates have been in prison for years, the number of older people just entering has also been increasing — along with the cost of their care. In Michigan, the annual cost of health care for the average inmate was $5,800, according to the study, a figure that increased to $11,000 for prisoners aged 55 to 59. The cost spiraled to $40,000 a year for inmates 80 years and older. “Prison officials look at the projected increase in aging prisoners in their systems and realize in the very near future they will need to operate specialized geriatric facilities,” the report said. “Some already do.” California, which is under federal court order to reduce overcrowding in its prisons, has seen the percentage of its inmates older than 50 increase to 17 percent in 2010, from 4 percent in 1990, according to the state Department of Corrections and Rehabilitation. “We have an awful lot of people who are probably going to die in prison,” said Nancy J. Kincaid, spokeswoman for the state’s Correctional Health Care Services. “There are people with 40-year sentences, 30-year sentences. We have to figure out how to care for these people.” The state’s prison health care system has been in federal receivership since 2006, when a court ruled that the state was failing to provide inmates with adequate access to health care services. Ms. Kincaid said that as the prison population had aged, so had the incidence of chronic diseases among inmates, including hypertension and diabetes. And because the state has only three hospitals for prisoners — about 120 beds — it must contract with private operators for inpatient care. The cost of a hospitalized inmate in such a facility is about $850,000 a year. “We have guys who are comatose shackled to beds with a guard in the room,” she said. To reduce costs, the state is building a $750 million medical center for inmates in Stockton that will have 1,772 beds, and include a pharmacy and dialysis clinic. It will be single story to ease mobility problems among what is expected to be a large number of older patients.

2011-12-25 Administrator The Issues I am writing a letter to request a pardon of Guy Thomas Fisher. My name is Erica Pirtle and I am a U.S. citizen. I consider myself to be a decent and upright member of society. I am a woman who abides by the law. In addition, I am a person who believes in second chances. I am writing this letter because I feel compelled to bring to your attention the matter concerning Mr. Fisher's case. Mr. Fisher is an inmate in a prison located in Tucson Arizona. He has been in prison for the past 29 years. He was charged with drug racketeering. In 1984 Mr. Fisher was convicted and sentenced to a life term imprisonment. I would not be prompted to make a request in certain cases. However, after researching Mr. Fisher's case and communicating with him recurrently, I am convinced that he is a better man. There are many reasons I believe he should be released. First, Mr. Fisher has served the past 29 years in prison. I believe he has paid his debt to society. Secondly, Mr. Fisher has earned several degrees. He is the first to earn his Doctorate degree, while incarcerated. Also Mr. Fisher; Dr Fisher has great intentions to inspire the youth to learn from their mistakes and positively impact troubled adolescents. Last but not least, Dr. Fisher had an opportunity to reflect on his life; how is decisions affected his family, friends and others in his community. Not only does Dr. Fisher have the experience of being on both sides of the fence but he has the tools and education to help prepare others for life away from negativity. In conclusion, due to the above aforementioned Dr. Fisher has made a major transformation. Personally, I view Dr. Fisher's accomplishments as outstanding and commendable. Dr. Fisher's achievements set to serve a purpose. He is truly an example for others. Dr. Fisher has shown and proved that there is still a chance for one to turn their life around, given any circumstance. He is an inspiration for people of all ages. We all are prone to making unwise decisions that can have a long term affect on our lives. Dr. Fisher has come to this consensus. As a result, he is a changed person. Dr. Fisher deserves a second chance. So in part, I vote in favor of Dr. Fisher to be released. Thank you for your time and consideration regarding this matter. Sincerely Erica Pirtle